Law Commons^™

The Bursting Of The Pedigree Bubble, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

The Future Of Corporate Accountability For Violations Of Human Rights, Christiana Ochoa

Articles by Maurer Faculty

No abstract provided.

In Defense Of Conservation Easements: A Response To The End Of Perpetuity, W. William Weeks, Nancy A. Mclaughlin

Articles by Maurer Faculty

No abstract provided.

Child Support And (In)Ability To Pay: The Case For The Cost Shares Model, Pamela Foohey

Articles by Maurer Faculty

Currently enacted child support guidelines primarily focus on maintaining children's economic well-being when a single household is split into two. This article argues that this focus discounts another consideration which, when combined with the current analysis, could further advance children's well-being: the ability of parents to pay. An analysis of payment characteristics demonstrates that lower child support obligations may increase the amount of child support paid on average. Lowering presumptive obligations will make lower-income parents better able and more likely to pay their obligations, thereby increasing the amount of child support paid to lower-income children, while at most only marginally …

Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth Glenn Dau-Schmidt, Marc Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull

Articles by Maurer Faculty

In this study, we use the University of Michigan Law School Alumni Data Set to undertake an empirical analysis of the impact of gender on the legal profession and the differences that gender makes in the careers and lives of attorneys. With regular survey responses from Michigan alumni from 1967 until the present, the University of Michigan Law School Alumni Data Set provides a unique opportunity to examine these questions from the days when female attorneys were rare, to the arrival of the first generation of women to achieve significant presence in the legal profession.

Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. …

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …

The Effects Of Booker On Inter-Judge Sentencing Disparity, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.

Updating Data Protection: Part I -- Identifying The Objectives, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Establishing Public Health Security In A Postwar Iraq: Constitutional Obstacles And Lessons For Other Federalizing States, David P. Fidler, Kumanan Wilson, Christopher W. Mcdougall, Harvey Lazar

Articles by Maurer Faculty

The public health consequences of the conflict in Iraq will likely continue after the violence has subsided. Reestablishing public health security will require large investments in infrastructure and the creation of effective systems of governance. On the question of governance, the allocation of powers in the new constitution of Iraq is critical. Given the ease with which public health threats cross borders, the constitution needs to grant to the federal government the legal authority to manage such threats and simultaneously meet international requirements. Unfortunately, the draft constitution does not accomplish this objective. If politically possible, the constitution should be amended …

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Enabling After-Arising Technology, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Comity And Foreign Parallel Proceedings: A Reply To Black And Swan. Lloyd’S Underwriters V. Cominco Ltd., Austen L. Parrish

Articles by Maurer Faculty

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal.

The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts …

A Disability By Any Other Name Is Still A Disability: Log Cabin, The Disability Spectrum, And The Ada (Aa), Gabrielle L. Goodwin

Articles by Maurer Faculty

In EEOC v. Lee's Log Cabin, the Seventh Circuit followed the Supreme Court precedent of the last decade that has increasingly narrowed the determination of what constitutes a disabled individual under the Americans with Disabilities Act. In 2008, Congress passed the ADA Amendments Act in an attempt to restore the ADA to its original purpose and the original vision of the ADA's drafters and supporters. Whether these amendments will produce dramatic changes in the way the administrative agencies and courts apply the ADA remains to be seen. Nonetheless, the only way the ADA or its amendments will successfully protect against …

Foreward: President Barack Obama Law & Policy Symposium, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Who Is A Parent?, Michelle M. Botek, Dorothy R. Fait, Jillian L. Dilaura

Articles by Maurer Faculty

No abstract provided.

Federal Payroll, Gift, And Prepaid Card Developments: Fdic Deposit Insurance Eligibility And The Credit Card Act Of 2009, Sarah Jane Hughes

Articles by Maurer Faculty

Prepaid and other stored-value products have grown into major tools for making retail payments and payments of wages to employees. This article discusses two major developments in federal law that pertain to stored-value products - the November 2008 - revision of primary guidance from the Federal Deposit Insurance Corporation on the scope of eligibility of payroll cards for deposit insurance, and Congress’ May, 2009 enactment of the CARD Act, which takes effect on February 22, 2010. The CARD Act is the first effort by the federal government to regulate gift cards. It established federal standards relating to subjects on which …

Book Review. Liberty: Rethinking An Imperiled Ideal By Glenn Tinder, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Change In Racial And Ethnic Classifications Is Here: Proposal To Address Race And Ethnic Ancestry Of Blacks For Affirmative Action Admissions Purposes, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Now Is The Appropriate Time For Selective Higher Education Programs To Collect Racial And Ethnic Data On Its Black Applicants And Students, Kevin D. Brown

Articles by Maurer Faculty

American colleges and universities have traditionally lumped all of their black students into a unified “Black/African/African American" category. However, there is growing evidence that American higher education is witnessing a historic change in the racial and ethnic ancestry of Blacks who are the beneficiaries of affirmative action. Recent studies have pointed out that disproportionately large percentages of Blacks benefiting from affirmative action are foreign-born Black immigrants, their sons and/or daughters, and multiracials. In addition, the number and percentage of blacks approaching college age from these groups will increase substantially in the next five to ten years.

In light of this …

"Render Unto Caesar...": Religion/Ethics, Expertise, And The Historical Underpinnings Of The Modern American Tax System, Ajay K. Mehrotra

Articles by Maurer Faculty

A variety of scholars and commentators have been recently exploring the connections between religion and current U.S. tax policy. The relationship between religion and American taxation, however, runs much deeper than our present period. Indeed, it is no coincidence that roughly a century ago the foundations of our current tax system were taking shape at the height of the religious and ethical fervor known as the Social Gospel movement. At that time, religious and ethical sentiments played a central, though ambivalent, role in fiscal reform. This Article investigates the influence of religious and ethical values on the tax reform struggles …

Can Public International Boarding Schools In Ghana Be The Next Educational Reform Movement For Low-Income Urban Minority Public School Students?, Kevin D. Brown

Articles by Maurer Faculty

The past twenty-five years has witnessed dramatic changes in the world, including the rise of international trade, unprecedented movement of people across national borders, tremendous advances in communication technologies and new forms of knowledge. Due to the changes of this magnitude, the American public is aware of new and formidable global and international problems that did not exist before. However, these changes also provide the conditions for applying new solutions to domestic problems that have plagued American society for decades. This Article puts forward an innovative suggestion to a persistent problem of American society: the problem of how to improve …

Between Diffusion And Distinctiveness In Globalization: U.S. Law Firms Go Glocal, Carole Silver, Nicole De Bruin Phelan, Mikaela Rabinowitz

Articles by Maurer Faculty

There is widespread agreement that law firms have embraced globalization, but what this means and why it matters are subjects still cloaked with uncertainty. Do law firms follow the models and processes of globalization characteristic of other businesses? Or are law firms forced to take a different approach because of the nature of law and its basis in a particular national system? In this article, we consider these questions as they apply to U.S. law firms, and offer a new lens to interpret the role of globalization in the activities of law firms and their lawyers. We use data relating …

Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.

The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have …

Leaving The Thicket At Last?, Luis Fuentes-Rohwer, Laura Jane Durfee

Articles by Maurer Faculty

Across the spectrum of ideas debated within the law of democracy, the view is nearly unanimous that the Justices must lead the way toward a better democracy. And yet, as we argue in this Essay, the Court’s handling of the problems since its initial intervention in Baker v. Carr has been nothing short of a mess. Debates in this area offer modern instances of a Court that cares little about doctrinal consistency and judicial craftsmanship, of Justices that care less about compromise and common ground and more about expressing their deeply held views about politics, democracy, and the law. In …

Solving The Employee Reference Problem: Lessons From The German Experience, Kenneth Glenn Dau-Schmidt, Matthew Finkin

Articles by Maurer Faculty

In this article we examine the problem of declining employer references in the American economy. We argue that the problem is not that employers inordinately fear potential slander and libel liability for giving references, but that they have no assurance of benefits from reciprocal references in exchange for taking any risk or suffering any cost in giving references. We provide a comparative legal analysis and argue that the United States might benefit from adopting an employer letter of recommendation system similar to that currently used in Germany.

Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman

Articles by Maurer Faculty

This article uses a social welfare approach to determine if and when the institution of constitutional judicial review of property regulation and expropriation is efficient. A model is proposed in which property rights protection is a component of social costs. Constitutional judicial review is assumed to either add to or subtract on net from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, that constitutional judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the …

An Empirical Analysis Of Lateral Lawyer Trends From 2000 To 2007: The Emerging Equilibrium For Corporate Law Firms, William D. Henderson, Leonard Bierman

Articles by Maurer Faculty

No abstract provided.

Constitutionalism Before Constitutions: Burma's Struggle To Build A New Order, David C. Williams

Articles by Maurer Faculty

No abstract provided.